THE DEPUTATION CASE.

Lake Wakatip Mail, Volume I, Issue 32, 19 August 1863, Page 4

THE DEPUTATION CASE.

(Continued.) HARRIS V. BRADSHAW.

Mr. Campbell for the defence said—l take this as money received in Bradshaw's name, and if Harris can recover this money, so can each and all of the committee. It is paid into the subscription fund, and not to Mr. Harris, and cannot therefore be his money. He has paid one pound, and on that ground can rnly claim or sue for one pound ; and even then Mr. Harris must make out a title, and first prove that this money is his own. Mr. Bradshaw could make the committee pay all his expenses, however much they were; but he was satisfied with what he got. The money was handed to Mr. Bracken unconditionally by the subscribers, and by him to Mr. Bradshaw. He would show them several cases in point. The first was an action for money paid at the request of defendant and to his use: Taylor v. Higgin. Again, in Maxwell v. Jamieson, the plaintiff must prove that money was paid. The plaintiff must prove that the money was his: Gussell v. Robinson. The plaintiff must prove that it was his money which the defendant received: Scarfe v. Hallifax. Again, where an attorney's clerk (B), in the absence of his master (Z), received money due to plaintiff, one of his master's clients, and gave a receipt B for Z ; and his master never returning, the clerk refused to pay over the money to plaintiff, it was held that no action lay against the clerk, there being no privity between him and plaintiff. Mr. George Clements said he was not at any of the public meetings for sending delegates to town. Was a subscriber to the fund; paid his subscription to Mr. Bracken. Mr. Bracken did not toll him he was a member of the committee. Was informed by Mr. Hracken that Mr. Bradshaw wanted £4O, but Mr. Gordon went on his own account. By Mr. Harris.—Am not sure those were the exact words. This occurred just as they were about to start. Mr. Bracken said all over £4O would be returned. Saw Mr. Bradshaw leave after I had given the money. I believe I attached my name to the subscription list, although it is not there now. Robert Paterson said he was present at the first public meeting held for the purpose of sending delegates to town. Was at all the meetings. Heard Mr. Bradshaw state he would not go under £4O. Mr. Gordon said he would go for £l6, as he intended doing other business. Mr. Bradshaw's remark was made publicly. Mr. Harris was present as chairman. Mr. Gordon said then he would go for £l6. Mr. Bradshaw said he would not go under £4O. His Worship.—Was any reply made to Mr. Bradshaw ? Mr. Paterson.—There was a reply, but I do not recollect the exact words; they were tantamount to an approval. Richard C. Luscombe said he was present at a pubi;c meeting eonveued for the purpose of sending delegates to town. Wrote out two or three

of the resolutions at that meeting. Was present when Mr. Bradshaw was asked to become one of the delegates. Believed there was a proposition to give the delegates £BO. Mr. Gordon said he did not see what they;wanted with so much money; he would go down for coach hire. By Mr. Harris.—Mr. Bradshaw was asked publicly; cannot, say who asked him. Did not hear Mr. Bradshaw say, after he was nominated, he would'riot go down under £4O. Did not hear him make a remark to that effect after he was elected. Did not hear Mr. Gordon say he would go for £l6. If it has been stated that three were nominated, it is incorrect. James B. Bradshaw said he was defendant in this action. Was elected at a public meeting to go to town. Stated the terms on which he would go to Dunedin before the meeting took place and after. Was called on by Messrs. Bracken and Powell on several occasions, and requested to proceed to town as a delegate to lay the grievances of this town before the Government. Stated it depeuded on the arrival of Mr. M'Tavish, as the Union Bank was being built. Said distinctly, without making any promise, that he would expect his expensesSas in going he should be at a loss, on account of being away from business, and also being unable to correspond with the papers. Fifty pounds was then mentioned as a sufficiency for his expenses. Went to the meeting with the distinct understanding that he was to be elected with Mr. Bruee. At that meeting he wrote the second resolution ; the objectionable resolution was written by Mr. Manders. That was the only one written by himself. He believed a committee was formed that evening, for the purpose of cqllecting money. Was asked by several gentlemen what sum would be sufficient; he again said £SO would do. A resolution was put at that meeting that a sum of eighty pounds should be given to the delegates. Mr. Gordon stated he thought that sum excessive, as he could go down for less. Took it for granted that resolution was passed, and £BO would be collected, and said he would go for £4O. On the day he left he called on Mr. Bracken, who said that he would then go and collect the money. Just before the boat left, Mr. Bracken handed him £46. In handing the money, he said, " What about Mr. Gordon's expenses ?" Mr. Bracken said Mr. Gordon had already left by way of the Dunstan, and that he was going down to transact business, and he knew nothing about his expenses. Mr. Gordon asked him in Dunedin if any money had been subscribed. He said yes, but not for him. He made no further remark. When handing the money, Mr. Bracken said, " That is all we have collected this day." His expenses were beyond £4O, as well as his business being at a stand-still during his absence. The bank being in course of erection would in no way have hindered his transacting business as usual. By Mr. Harris.—Messrs. Bracken and Powell called on him previous to the meeting, and asked him if he would become a delegate. Had a right to receive any money given to him. Had no business to take him to town. Took him four days to go to town ; coach fare £8 10s. His expenses were £1 per day. Was three days in town before he saw the Superintendent. It cost him £2 per day in town. He considered that the whole of the time he was away was on the 'deputation business. Was away five weeks. Could not have returned the day after the deputation had been received; his health would not allow him to return directly. Did not carry on his business as correspondent while in town. He received one letter from Queenstown, which cost more than what he received for it. Recollected saying that he would place the money in any person's hands appointed by that meeting lo receive it. Did not do so, no person being appointed. The letter produced states that ho would return money to subscribers; it is true. Did not stata in the Union Bank that £46 had been given to him, and that he would keep it. Informed the meeting that unless he had received £4O he would not have gone. Said this after he was nominated and before. Was certain Mr. Cass did not tell him that he ought to have the meeting about the terms. Did not tell Mr. Cassius he had business in town. His only business in town was in connection with the deputation. Mr. Campbell said the gist of the case appeared to be this—was it £4O or was it £46. No doubt it was supposed the whole amount was for Mr. Bradshaw. Mr. Gordon, no doubt, stated that he did not care about his portion, and this led to many mistakes. The committee had shown strong feeling in the matter —he thought far too much. Personal feelings in all cases were likely to warp sound judgment. For himself he must say, he should have thought as Mr. Bradshaw did, that the money handed to him was for his own special use and benefit. Unfortunately for all, Mr. Gordon was away, and he was a material witness in the case. Mr. Harris had no locus stindi in that court. If any one had any right to summons, that man was Gordon, as it was his money that was appropriated. Gordon had not claimed the money, or did he seem to wantit. The money was given by public subscription, and Mr. Harris had no legal or moral right to the money. As it was now very late, he would no longer detain the Court in the matter. This completing the evidence for the defence, his Worship deferred his decision till the next day (Saturday), when he gave a verdict as follows : —After having weighed the somewhat conflicting evidence brought forward in this case, I give judgment for the plaintiff for £6. I consider that the plaintiff has established an equitable right to sue for the money and to hold the same. That portion of the evidence bearing upon the offer of the defendant to perform the duties assigned to him for the sum of £4O, is especially conflicting. His subsequent admission with respect to that sum, and the fact of its having at different times been discussed as a sufficient one

for the purpose; taking into consideration that no fixed amount was settled upon by the committee before the dep »rture of the defendant for town will entitle him, in my estimation, to receive'that sum. Further, the circumstances under which the £46 was handed over to the defendant—that is, without any distinct intimation as to its application or division—would leave him in a great measure at liberty to use his own discretion as to the portion of it he was entitled to receive. Indeed, it is a matter more to be determined by his own moral sense of justice than by the opinion of this Court. I am, however, of opinion thatjthe sum could not be determined in an arbitrary manner by the committee after the return of the delegates from town. It is to be regretted that the evidence of Mr. Gordon, as the other delegate, could not havo been produced in this cass. Costs to be divided.